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Cohan v. Genji Novi, Inc

United States District Court, E.D. Michigan, Southern Division

August 28, 2019

HOWARD COHAN, Plaintiff,
v.
GENJI NOVI, INC., Defendant.

          OPINION & ORDER GRANTING IN PART AMENDED MOTION TO STRIKE (DKT. 18)

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiff Howard Cohan's amended motion to strike (Dkt. 18). Cohan brought this action under Title III of the Americans with Disabilities Act (“ADA”) against Defendant Genji Novi, Inc., a restaurant in Novi, Michigan. Cohan, a disabled individual, alleges that the restaurant has numerous architectural barriers, which denied him equal access and enjoyment of the establishment. Cohan seeks to strike five of Genji's thirteen affirmative defenses under Federal Rules of Civil Procedure 11 and 12. Genji filed a response opposing Cohan's motion (Dkt. 20). No reply brief was filed. For the reasons discussed below, Cohan's motion is granted in part.

         I. LEGAL STANDARD

         A court has the discretion to strike an insufficient defense from a pleading, Fed.R.Civ.P. 12(f), but such relief is disfavored and infrequently granted, Operating Engineers Local 324 Health Care Plan v. G & W Constr. Co., 783 F.3d 1045, 1050 (6th Cir. 2015). An affirmative defense is insufficient where “as a matter of law, the defense cannot succeed under any circumstances.” Specialized Pharm. Servs., LLC v. Magnum Health & Rehab of Adrian, LLC, No. 12-12785, 2013 WL 1431722, at *6 (E.D. Mich. Apr. 9, 2013) (citing cases). The purpose “of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues” early in the case. Kennedy v. City of Cleveland, 797 F.2d 297, 305 (6th Cir. 1986).

         Additionally, pleadings, including affirmative defenses, are governed by Federal Rule of Civil Procedure 11. Rule 11(b) requires that a representation in a pleading be made “to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances.” Defenses must be “warranted by existing law” or be raised to extend or reverse existing law. Fed.R.Civ.P. 11(b)(2).

         II. DISCUSSION

         Cohan takes issue with the following affirmative defenses:[1]

1. Plaintiff failed to provide Defendant notice of the alleged violation of Title III of the Americans with Disabilities Act of 1990 prior to filing this lawsuit and failed to request Defendant to provide alternate access to its facilities or provide Defendant an opportunity to cure the alleged violation of Title III of the Americans with Disabilities Act of 1990.
5. Assuming, arguendo, that the alleged barriers about which Plaintiff complains exist, those barriers will be removed.
10. The goods, services, facilities, privileges, advantages, and accommodations Plaintiff contends that he has been barred from receiving are available to him through alternative methods.
12. Plaintiff's claims are barred to the extent that he failed to mitigate his alleged damages, if any.
13. Plaintiff's claims are barred because the claimed violations are “de minimis” and nonactionable because they do not materially impair Plaintiff's use of an area for an intended purpose.

Affirmative Defs. ¶¶ 1, 5, 10, 12, and 13 (Dkt. 12). The defenses will be addressed in turn.

         1. Affirmative Defense One - ...


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